Legal Commentary

Assessing the Impact of State Constitutional Amendments Banning Gay Marriage

By Ilya Somin

In this post commenting on the revelation that former Republican National Committee chairman Ken Mehlman is gay, Yale lawprof Jack Balkin argues that the recent spate of state anti-gay marriage constitutional amendments may significantly retard progress towards gay equality:

[Ken] Mehlman was the chair of the Bush 2004 presidential campaign, which deliberately used opposition to same-sex marriage?and indeed, moral opposition to homosexuality?as a way of increasing turnout among members of the Republican base. One way of doing this was to work with anti-SSM groups to schedule votes on state constitutional amendments that would prohibit the recognition of same sex marriage. As a result of this strategy, thirteen states passed such amendments during the 2004 election cycle, followed by a dozen or so more in the next four years.

These amendments matter because they complicate the most obvious path toward marriage equality: proceed state by state and get a majority (or more) of states to recognize same-sex marriage. After that occurs, it is much easier for the federal courts and the Supreme Court to consider a challenge to laws banning same sex marriage.

A few states with such constitutional amendments would not be a very serious obstacle......

The problem is that as a result of the 2004 Bush campaign, a much greater number of states have constitutional amendments that block both ordinary legislation and judicial interpretation of state constitutions. At last count, 29 states had constitutional bans on same sex marriage. 

I criticized arguments similar to Balkin?s here, here, and here. To briefly summarize my main points, I doubt that these amendments will have more than a minor effect for two reasons. First, most of them are in states that are unlikely to enact gay marriage anytime soon. Even more importantly, most are in states with easy to amend constitutions. The vast majority of the amendments in question were enacted by a majority vote referendum, similar to that which led to the passage of California?s Proposition 8. When and if public opinion in those states shifts decisively in favor of gay marriage, advocates can easily reverse those amendments by sponsoring a referendum initiative of their own. To be sure, such an effort requires funding and organization. But gay marriage advocates are reasonably strong in both areas. For these reasons, the anti-gay marriage amendments will ultimately cause no more than brief delays in the enactment of gay marriage once majority opinion comes to support it.

On a less important note, I think Balkin also overstates the importance of Mehlman?s and Bush?s role in the passage of these amendments. Given the massive outcry that the Massachusetts Supreme Judicial Court?s 2003 pro-gay marriage decision caused among social conservatives, it is likely that conservative groups would have tried to put as many amendments on state ballots as they could, even absent Mehlman?s efforts. 

Balkin also criticizes Mehlman for ?us[ing] moral opposition to homosexuality as a lever to get out the vote? in 2004, despite the fact that he was a supporter of gay marriage himself. Although one can theoretically be opposed to gay marriage without also opposing homosexuality as such, it is very likely true that most of those who oppose the former do so in large part because of their opposition to the latter. That said, I?m not sure that Mehlman is as blameworthy as Balkin suggests. In politics, it is not unusual to support one candidate over another despite the fact that the preferred candidate has objectionable views on some issues. Perhaps Mehlman believed that Bush?s superiority over John Kerry on other issues was great enough to justify doing all he could to elect the former despite the likely negative impact on gay marriage. Maybe he also believed (as I do) that these amendments would not have much longterm effect. Like most political operatives, Mehlman is no saint. But he may not be as big a sinner as Balkin suggests.

Full post as published by The Volokh Conspiracy on August 31, 2010 (boomark / email).